UPDATED Thursday 4:17 p.m. The state has now asked the Tenth Circuit Court to stay the decision against its same-sex marriage ban, while its appeal goes forward. The filings can be read here.
UPDATED Wednesday 9:31 a.m. Kansas officials said they will seek initial en banc review of the case in the Tenth Circuit. The statement of Attorney General Derek Schmidt is here.
A federal judge in Kansas City, moving toward adding Kansas as the thirty-third state where same-sex marriages will be allowed, ruled Tuesday that the state cannot prohibit gays and lesbians from marrying. U.S. District Judge Daniel D. Crabtree did so in a thirty-eight-page decision dealing both with the constitutional issue and with the delicate question of how to handle the dispute when it is unfolding at the same time in both federal and state courts — a new layer of controversy as challenges to state bans roll on.
Because the judge said that his ruling dealt with novel issues about federal-state judicial relationships, he put his ruling on hold for a week — as requested by state officials — to allow them to appeal and test their arguments in the U.S. Court of Appeals for the Tenth Circuit and, perhaps, in the Supreme Court. His order will take effect next Tuesday, unless state officials decide before then against an appeal. If an appeal goes forward, his ruling presumably will be delayed further.
Lawyers for state governments, after losing case after case as they defended state bans on same-sex marriages in federal courts, have begun making other arguments to try to block the federal courts from even ruling on the issue. That strategy was attempted in Judge Crabtree’s court, and is now being advanced in a federal court in South Carolina.
Both Kansas and South Carolina are located in federal judicial circuits where the appeals courts have struck down state bans — the Tenth Circuit for Kansas, and the Fourth Circuit for South Carolina — and those rulings presumably are binding in all of the states in those regions because the issues have been the same and the state bans are nearly identical in form.
With the Supreme Court last month turning down pleas to review those two circuits’ rulings, it has appeared to be only a matter of time until the effect of those rulings would reach all of the affected states. That has happened, except for Kansas in the Tenth Circuit and South Carolina in the Fourth Circuit.
In both of those states, state courts have recently taken action to stop the issuance of marriage licenses, at least temporarily, to same -sex couples, and are reviewing the validity of state bans, but same-sex couples are simultaneously pursuing their constitutional challenges in separate federal courts.
That has raised the prospect of a conflict in authority, and that is the conflict which the Kansas City judge confronted and decided in his ruling on Tuesday.
The case, Marie v. Moser, involves two same-sex couples who wish to marry, but the Kansas state constitution and state laws allow marriage only for opposite-sex couples. The same-sex couples challenged those bans both as they prohibit new same-sex marriages and as they deny recognition to existing same-sex marriages performed elsewhere for Kansas couples. Judge Crabtree ruled only on the ban on new marriages, finding that the two couples had no legal right to sue on the marriage-recognition question.
On the right to marry, the judge decided that he was bound by the Tenth Circuit’s separate decisions striking down the same kind of bans in Oklahoma and Utah. Thus, he ruled, in the end, that Kansas officials could not enforce its laws, once his ruling took effect. (The Tenth Circuit rulings have meant that same-sex marriage is also now allowed in these other states in the circuit: Colorado and Wyoming. Another state in that region, New Mexico, already permitted such marriages under a state court ruling.)
Before Judge Crabtree reached his ultimate decision on the constitutional question, however, he ruled on the variety of challenges that state lawyers had made to the authority of the federal courts to decide that question at all.
Here, in brief, are the state arguments that Judge Crabtree found legally insufficient:
* The Eleventh Amendment on states’ sovereign immunity and federal civil rights law together bar a federal court from ordering a state judge to act or not to act, and marriage licenses in Kansas are issued by state court judges. The federal judge ruled that, in issuing marriage licenses, state judges are not carrying out judicial duties, so those limitations do not apply.
* The Supreme Court has long recognized a “domestic relations” exception to federal court authority that bars those courts from deciding issues of family law. The judge ruled that the exception only applies to divorce, alimony, or child custody, when a state court has issued a binding order, and does not apply to marriage.
* A federal court should not rule on a case in a way that would interfere with ongoing state court proceedings, in court or administrative agencies of a state. Judge Crabtree rejected four different variations of this so-called “abstention doctrine,” either because it simply did not apply or because it was trumped by the obligation of federal courts to decide constitutional challenges legitimately brought in those courts.
* Federal court review of the constitutional issue is barred because the Supreme Court has made clear that federal courts below the Supreme Court have no authority to review state court decisions, and the Kansas Supreme Court has temporarily blocked the issuance of marriage licenses throughout the state. The federal judge said he was not reviewing that decision at all, but was instead deciding a separate lawsuit filed by individuals not involved in the proceeding before the state’s highest court.
Throughout his opinion, Judge Crabtree expressed sensitivity to the need for him to show respect for the state’s own judicial and legal processes.
He said he was sympathetic to the burdens that his ruling to block enforcement of the Kansas bans on same-sex marriage would put on state officials, but he said the Kansas provisions were not “so complex” that those officials will have to struggle to sort out what they must due to obey the order.
His one-week delay of implementation of his order, to allow state officials to pursue an appeal within the federal courts, was issued at the specific request of those state officials, so presumably they will seek to have his ruling blocked either by the Tenth Circuit or the Supreme Court.
The Supreme Court so far has declined to review any of the decisions by federal courts over the past seventeen months striking down state bans on same-sex marriage and, in recent orders, has refused even to block such rulings until appeals could be filed with the Justices. Those denials by the Court have accelerated the trend toward allowing same-sex marriages. There were nineteen states where such marriages were allowed as of the beginning of October, and the total has now risen to thirty-two — and Kansas would be the thirty-third.